Frequently Asked Questions About Wills
Here you will find answers to the most commonly asked questions. If you have any other questions, please feel free to contact us and ask.
Q: What is a will?
A: A will is document in which a person (the testator) regulates the rights of others over his property after death. Typically a will spells out a person's final wishes, including who is to receive what after the person has passed away
Q: What is a holographic will?
A: A holographic will is a will that has been entirely handwritten and signed by the testator. Normally, a will must be signed by witnesses attesting to the validity of the testator's signature and intent. In some jurisdictions, unwitnessed holographic wills need to meet minimal requirements, such as the following, in order to be probated:
- There must be evidence that the testator actually created the will, which can be proven through the use of witnesses, handwriting experts, or other methods.
- The testator must have had the intellectual capacity to write the will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.
- The testator must be expressing a wish to direct the distribution of his estate to beneficiaries.
Q: What if there is more than one will?
A: A person can only have one official will; if more than one will is made, the latest will is generally taken to be the official last will of the decedent. The probate court is the ultimate authority on which will is the last will of the decedent. If the probate court finds that the will is not valid, then the decedent's property will be distributed as if no will ever existed (by the intestate laws of the state where probate is taking place).
Q: When can a will be challenged?
A: A will can be challenged primarily on the following grounds, among others:
- the testator was not of sound mind or body when the will was made;
- that the will is forged;
- that there is a later will than the one in question;
- undue influence.
Challenging a will is a very serious matter. A challenge should be made only if the person challenging has solid evidence that the will in question is not valid.
Q: What is a living will?
A: A living will provides instructions in case someone becomes incapacitated and is unable to direct their own health care decisions. Living wills do not dispose of property nor are they subject to probate - they are a separate entity that spells out a person's wishes for their care in the event that they cannot express their decisions.
Q: What is a codicil?
A: A codicil is a document that amends, rather than replaces, a previously executed will. Amendments made by codicil may only add or revoke a few small provisions, or they may completely change the majority of the provisions of the original will. Each codicil must contain the same legal requirements as the original will, such as the signatures of the testator and two or three disinterested witnesses. Codicils should be clearly labeled as such to avoid confusion as to whether or not the codicil is in fact a whole new will.
Q: What is a specific bequest?
A: A specific bequest is a gift that is made by a testator for a particular heir. An example is a line in a will that states something along the lines of "$100,000 to my nephew Steven." Specific bequests are given priority and are satisfied before the residuary estate is distributed.
Q: What is the residuary estate?
A: The residuary estate is what is left over after the decedent's debts, probate expenses, and specific bequests have been satisfied. Normally a will provides for the residuary (left-over) estate to be divided among named individuals.
More Frequently Asked Questions...
General FAQ
FAQ About Trusts
Glossary of Important Terms
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